FSA Local Authority Letter (ENF/E/06/080), 5 December 2006
[A pdf version of this letter and the attachements is available from the FSA: http://www.food.gov.uk/multimedia/pdfs/enfe06080.pdf]
This letter is addressed to enforcement authorities in England only.
Further to the letter issued on 9 November 2006 (ref: IFD/E/06/025), of which a copy can be found in Annex A, this letter provides further advice on the statutory obligations of food and feed authorities under the Rice Products (Restriction on First Placing on the Market) (England) Regulations 2006 (the Regulations) enclosed as Annex 1. The Regulations implement Commission Decision 2006/601/EC as amended by Commission Decision 2006/754/EC/EC (the Amended Decision). For ease of reference, the Decisions accompany this letter in PDF format.
The Regulations implement Articles 3 and 4 of the Amended Decision by placing a statutory duty on enforcement authorities to ensure that, for the purpose of executing and enforcing the Regulation, appropriate measures are taken to verify the absence of genetically modified rice LL RICE 601 from the market and to withdraw rice from the market where it is found to be contaminated with genetically modified rice LL RICE 601.
As was pointed out in the letter of 11 October (ref: ENF/E/06/065), regulation 29(1) of the Official Feed and Food Controls (England) Regulations 2006 (the OFFC Regulations) provides that enforcement authorities have the enforcement powers in Articles 18 to 21 and 24(3) of Regulation 882/2004 (Chapter V – Official Controls on the Introduction of Feed and Food from Third Countries). These powers are available when enforcing the Regulations in relation to Article 3 of the Amended Decision (see regulation 4(4)(b) of the Regulations) as regards ‘random sampling and analysis' and Article 4 of the Amended Decision (see regulation 4(4)(c) of the Regulations) as regards ensuring that US long grain rice containing genetically modified rice LL RICE 601 is withdrawn from the market.
Article 18 of Regulation 882/2004 gives the power to detain consignments when there is suspicion of non-compliance and to sample rice to confirm or eliminate suspicion. Articles 19, 20 and 21 provide powers to deal with consignments that do not comply and include the power to order destruction or to re-dispatch the consignment.
Regulation 29 of the OFFC Regulations provides for use of powers under Article 18 of Regulation 882/2004 to detain pending the results of any examination associated with the official controls. In line with the guidance in Annex 14 (paragraph A.14.17) of the Practice Guidance to the Food Law Code of Practice -
“Where an authorised officer has detained a food consignment pending any results of examination, they should notify in writing the person importing the food or any person in possession of the food who is entitled to be in possession of it. The notification should specify that the food should not be removed from the place stated, until the officer's examination of the food has been completed.”
If the food fails to comply with food law it should be dealt with using Article 19 procedures (Notice served under regulation 30 of OFFC Regulations 2006). Regulation 29(2) of the Official Feed and Food Controls ( England ) Regulations 2006 provides that the food business operator responsible for the consignment is liable for the costs incurred by the enforcement authority in carrying out enforcement activity under Articles 19 to 21 of Regulation 882/2004.
Article 3 of the Amended Decision provides –
“Member States shall take appropriate measures, including random sampling and analysis carried out in accordance with the Annex, concerning the products referred to in Article 1 already on the market in order to verify the absence of genetically modified rice “LL RICE 601”.”
Enforcement authorities will have to consider what are “appropriate measures” when they are executing and enforcing the Regulations. In deciding what are “appropriate measures” they should take account of local conditions in their area relevant to the amount of contaminated US long grain rice that may be present on the market. Enforcement authorities should have it in mind that controls were imposed on the import of US long grain rice on 23 August 2006, and that any rice released by UK importers after that date may already have been tested and positively cleared as uncontaminated with LLRICE601.
In identifying rice that may not already have been positively cleared as free from contamination, enforcement authorities may find it helpful to seek guidance from food business operators (including retailers) as to whether any of the stock falls into this category.
If you wish to have rice analysed, samples can be submitted for analysis in the usual way via the Public Analyst network.
The Regulations apply to rice originating from the USA falling within the following CN (Combined Nomenclature) codes:
Combined Nomenclature (CN) codes are used for Customs purposes when declaring commodities for import control procedures. They are provided in the Customs Tariff and are also referred to as TARIC codes. These numbers will be available on commercial paperwork and copies of Customs entries lodged when the goods were imported. Officers may request such documents from food business operators in order to identify whether particular commodities are within the scope of the controls on US long grain rice. The full range of CN codes may be accessed here: http://www.uktradeinfo.com/index.cfm?task=icnbrowstwo&Sector=1
The advice contained in this letter should not be taken as an authoritative statement of the law or its interpretation. Only the courts can decide whether in particular circumstances an offence has been committed.